No deletion claim against physician rating portal

(Physician) rating portals are frequently said to have a high susceptibility to misuse because the rating can take place largely anonymously. Moreover, the ratings are susceptible to the suspicion of not being representative because, as a rule, it is rather dissatisfied customers or patients who submit ratings, which can severely distort the informational value to the detriment of the affected physician. At the instigation of a physician, the Federal Court of Justice (BGH) now had to decide whether the physician could demand the deletion of his data from jameda.de.

At jameda.de—as at other rating portals—the professional data of the physician is published and patients are given the opportunity to rate the physician as well as his practice and his services. All of this occurs unsolicited, that is, without prior consent of the affected physician. The problem in practice is that a rating can also be submitted anonymously, it does not necessarily have to come from a genuine patient, and negative ratings can have considerable effects on the professional advancement of the affected party. Users, by contrast, are presented with the ratings as an objective decision-making criterion, which may decisively influence the choice of physician. Rather than confining itself to attacking individual ratings, a gynaecologist therefore attempted to call upon Jameda to effect deletion of his data and thus of all ratings. The lower courts rejected such a claim, which is why the Federal Court of Justice (BGH) in the court of appeal had to rule on the correctness of these decisions.

The court's decision

The court likewise rejected such a deletion claim in its judgment of 23.09.2014 (Az. VI ZR 358/13). Although the judges recognise the aforementioned weaknesses of the system and also evaluate them within the framework of the required balancing. According to the court's view, the right of the operator of the rating portal to freedom of communication outweighed the physician's right to informational self-determination, that is, the right to determine whether, when, where and how his data is published. Within the framework of the required balancing of the mutual interests, ultimately preference was to be given to the public's interest in information about medical services. Against the background of free choice of physician, the information provided has considerable significance, which outweighs the disadvantages.

It was also decisive for the court's ruling that the physician is affected only in his "social sphere", that is, an area in which personal development takes place in the public sphere from the outset. In other words: anyone who ventures (professionally) into the public sphere must, in the court's view, accept that he will also be perceived there and his services will be rated or criticised. By contrast, the existing possibilities for objecting to and eliminating false factual claims and insulting or otherwise impermissible ratings offer sufficient protection. The fact that the ratings can also be submitted anonymously does not change this, since the possibility of anonymous use is inherent to the Internet.

Conclusion

The judgment may be internally coherent and also correct. In my view, however, the actual extent of the inadequacies of anonymous rating systems and the actual scope of misuse are given far too little consideration. Although the court indicated possibilities for defending against individual ratings, practice shows that these are, especially in the case of targeted attacks, just as inadequate—because burdensome—as the rating system itself.